Writer: Sophia Leonard
Editor: Rylee McDaniel
April 28, 2024
I. Current Climate Law
Climate law within international agreements serves as a common source of dispute among nations as feasibility and accountability are often considered with new climate proposals. The United Nations Framework Convention on Climate Change (UNFCCC) describes the three principles of international climate law to be the common but differentiated responsibilities among nation-states, a consideration of intergenerational equality concerning the resources available to adapt and mitigate the climate crisis, and the precautionary principle that details our responsibility as we assess the consequences if no action is taken (UNFCCC, 1994). These principles are utilized in international climate legislation to be abided by all nation-states involved.
The Kyoto Protocol is one of the first climate treaties to be implemented within the United Nations (UN). The Kyoto Protocol was based upon the three principles of climate change previously described; the importance of common but differentiated responsibilities was particularly emphasized in the distinguishment between Annex 1 countries (developed) and Annex 2 countries (developing). The distinction determined that Annex 1 developed countries were bound to their commitment to emission reduction of 5% below 1990s levels, while Annex 2 countries were not legally bound by that agreement but were expected to put their best foot forward to mitigate the impending climate crisis (Kyoto Protocol, 1997). The treaty required commitments from Annex 1 countries that account for 55% of CO2 emissions (Kyoto Protocol, 1997). The United States did not ratify the Kyoto Protocol due to perceived economic threats, thus the treaty was not implemented as the 55% requirement was not met.
Following the Kyoto Protocol, the Paris Agreement was put into action in 2015. The treaty commits to “holding temperature rise to well below 2C above pre-industrial while pursuing efforts to limit to 1.5C,” establishing a binding agreement in that each nation-state will have Nationally Determined Contributions (NDC) outlining their climate mitigation commitments (Paris Agreement, 2015). Within the Paris Agreement, Article 8 highlights the relationships between developing and developed countries in terms of support in resources or other methods; this tends to be the justice component of the climate crisis. Due to the inequitable distribution of causal responsibility surrounding the issue of global warming, some smaller developing nation states face consequences that don’t align with their polluter status. For instance, the small island state of Vanuatu and other developing countries have been condemned to face the violence associated with climate change as their home and cultures face destruction considering rising global temperatures and sea levels. The island of Vanuatu will not survive the 1.5C increase established by the Paris Agreement, leaving them vulnerable while the power populations of the world reap the rewards of limiting global temperatures (Ramirez, 2023).
Vanuatu’s struggles highlight that the climate regime as it stands is not perfect, and there is much room for improvement. Though not a new idea, a recent philosophy has gained popularity that may catalyze the change necessary in international climate law.
II. Rights of Nature Movement
The Rights of Nature Movement is a recent trend that contends nature should have rights and protections in the same way legal subjects have in our societal view. The argument began with Christopher Stone’s 1972 paper, “Should Trees Have Legal Standing?” in which he outlined that nature and the environment should be permitted to bring legal action when enforcing their interests. Stone’s argument took off with the 1972 Supreme Court case Sierra Club v. Morton; the Sierra Club was an environmental activist group that challenged Walt Disney Enterprises on their rights to develop a ski resort in California’s Mineral Valley, an area of pristine wilderness. The case presented a nuanced legal debate of whether a party of special interest can sue without personal and direct damage; the Sierra Club sought to represent the natural environment of Mineral Valley and fight in their interest (Sierra Club v. Morton, 1972). Following a long process with preliminary decisions and appeals, the case went to the Supreme Court as the Sierra Club anticipated setting a precedent of determining legal harm for future cases. The Supreme Court ruled that the economic damages and personal interest were necessary to establish standing; the loss of aesthetics and beauty of an area does not equate to economic damages in the eyes of the court (Sierra Club v. Morton, 1972). The decision noted the Sierra Club lacked personal interest and fell short of articulating a direct stake in the outcome (Sierra Club v. Morton, 1972). Despite the environmental loss, the case established an important conversation about whether the environment should have standing as a legal entity.
In recent years, the movement has gained traction and urgency from countries across the globe as the value of nature as a legal entity has been recognized in national legislation. In New Zealand, the Whanganui River was the first river to be granted legal rights in 2017 (Roy). The rights of the river have been heavily pushed by the local Māori tribe for years and were eventually recognized by New Zealand legislation. The “new law has honored and reflected [the Māori tribe’s] worldview” and will hopefully set a precedent for other indigenous tribes and global leaders looking to mend and mitigate climate change (Roy, 2017). This unique outlook on natural resources may be necessary to establish responsibility and urgency in addressing the climate crisis.
III. Feasibility of Implementation
Despite the actions from other countries to justify the Rights of Nature movement, questions remain from the greater population regarding the significance this implementation would have on the pressing climate issue. The existing utilization of the climate as a protected class in other regions catalyzes action on an international level, however as we observed earlier, it is much more difficult to enforce international laws than domestic law. There is no established method for legal punishment based on failure to comply with international treaties or customs; this is a facet of international law that needs to be amended to appropriately assess the climate crisis at hand.
The implementation of the rights of nature is a sound idea in theory, however, there may be further complications that arise after drafting legislation, as we see in Vanuatu’s ICJ request. A major consideration is who will be the spokesperson for the environment; there is much room for contrasting perspectives on what parties believe is best for the environment. Granting environmental legal protections brings on the issue of deciphering who will be nature’s representative in a court of law when necessary. To address this issue, it is necessary to implement a well-thought-out codified legal outline to detail who speaks for the environment in hopes of avoiding debates that follow. As a global community, we must exercise all resources of legal value to weigh in on the climate crisis and end the warming of our planet and the adjacent consequences.
References
Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10,
1997, 2303 U.N.T.S. 162.
Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12,
2015, T.I.A.S. No. 16-1104.
Ramirez, R. (2023, March 29). ‘A win of epic proportions’: World’s highest court can set out
countries’ climate obligations after Vanuatu secures historic UN vote. CNN. https://www.cnn.com/2023/03/29/world/un-advisory-opinion-vanuatu-climate-change/index.html
Roy, E. A. Guardian News and Media. (2017, March 16). New Zealand River granted same
legal rights as human being. The Guardian. https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being
Sierra Club v. Morton, 405 U.S. 727 (1972).
Stone, C. D. (1972). Should trees have standing? (3rd ed.). Oxford University Press.
Tigre, M. A. & Bañuelos, J. A. C.. (2023, March 29). The ICJ’s advisory opinion on climate
change: What happens now? Climate Law Blog. https://blogs.law.columbia.edu/climatechange/2023/03/29/the-icjs-advisory-opinion-on-climate-change-what-happens-now/
United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No.
102-38, 1771 U.N.T.S. 107.
Weisbrod, K. (2021, September 21). Does nature have rights? A burgeoning legal movement
says rivers, forests and wildlife have standing, too. Inside Climate News. https://insideclimatenews.org/news/19092021/rights-of-nature-legal-movement/
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